| People v Durham |
| 2021 NY Slip Op 04060 [195 AD3d 1318] |
| June 24, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Spencer B. Durham, Appellant. |
Carolyn B. George, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), forrespondent.
Clark, J. Appeal, by permission, from an amended order of the County Court of WashingtonCounty (Hall Jr., J.), entered May 31, 2019, which denied, among other things, defendant'smotion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of grandlarceny in the third degree (two counts), scheme to defraud in the first degree and issuing a badcheck (two counts), without a hearing.
Following a jury trial, defendant was convicted of the crimes of grand larceny in the thirddegree (two counts), scheme to defraud in the first degree and issuing a bad check (two counts)and was sentenced as a persistent felony offender to an aggregate prison term of 20 years to life.Upon defendant's direct appeal, this Court affirmed (148 AD3d 1293 [2017], lv denied 29NY3d 1091 [2017]). In September 2018, defendant separately moved pro se to vacate thejudgment of conviction pursuant to CPL 440.10 and to disqualify County Court from ruling uponthe CPL article 440 motion. The People opposed the requested relief, and County Court denieddefendant's motions without a hearing. When defendant advised the court that he neither receivedthe People's papers in opposition nor a copy of the court's written decision and order, CountyCourt afforded defendant additional time to file a reply and thereafter issued an amendeddecision and order, wherein the court again denied the requested relief. Defendant appeals, bypermission, from County Court's amended order.
We affirm. With respect to defendant's disqualification motion, the case law makes clearthat, absent a statutory basis for disqualification (see Judiciary Law § 14),which defendant does not allege, "a trial judge is the sole arbiter of recusal and his or herdecision, which lies within the personal conscience of the court, will not be disturbed absent anabuse of discretion" (People vRegan, 192 AD3d 1393, 1394 [2021] [internal quotation marks, brackets and citationsomitted], lv denied 37 NY3d 959 [2021]; see People vGarrow, 148 AD3d 1459, 1460 [2017], lv denied 29 NY3d 1031 [2017]; People v Lee, 129 AD3d 1295,1296 [2015], lv denied 27 NY3d 1001 [2016]).
The record before us does not contain any of the exhibits appended to defendant's recusalmotion—documents that purportedly reflect, among other things, County Court's biasrelative to the asserted denial of defendant's requests for investigative services and/or apsychiatric evaluation.[FN1]In any event, the substance of these requests was addressed and decided on the prior appeal,wherein we noted that County Court twice awarded defendant funds for investigativeservices—despite defendant's earlier failure to demonstrate why such services werenecessary (148 AD3d at 1295). We also upheld the denial of defendant's request for funding for apsychiatric examination—citing, among other things, defendant's failure to provide timelynotice of his intent to offer psychiatric evidence (id. at 1296). The balance of defendant'sbias [*2]argument, which includes claims of judicial eyerollingand allegedly on-the-record accusations that defendant was feigning illness to delay his trial, isbased solely upon defendant's self-serving affidavit and the speculative assertions containedtherein. Absent record evidence to support defendant's claim of bias, we find no abuse ofdiscretion in County Court's determination that recusal was unwarranted (see People vMoreno, 70 NY2d 403, 407 [1987]; People v Regan, 192 AD3d at 1394).
As to defendant's motion to vacate the judgment of conviction, "[t]he purpose [served by] aCPL article 440 motion is to inform a court of facts not reflected in the record and unknown atthe time of the judgment. By its very nature, the procedure cannot be used as a vehicle for anadditional appeal" (People vSpradlin, 192 AD3d 1270, 1273 [2021] [internal quotation marks and citations omitted],lv denied 37 NY3d 960 [2021]). "On a motion to vacate a judgment of conviction, a hearing is onlyrequired if the submissions show that the nonrecord facts sought to be established are materialand would entitle the defendant to relief" (People v Gassner, 193 AD3d 1182, 1185 [2021] [internal quotationmarks, brackets and citations omitted], lv denied 37 NY3d 956 [2021]; see People vMarte-Feliz, 192 AD3d 1397, 1397-1398 [2021]). Consistent therewith, "[a] court maydeny a CPL 440.10 motion without a hearing where an allegation of fact essential to support themotion is made solely by the defendant and is unsupported by any other affidavit or evidenceand, under all of the circumstances of the case, there is no reasonable possibility that suchallegation is true" (People v Hoffler,74 AD3d 1632, 1634-1635 [2010] [internal quotation marks, brackets, ellipsis and citationsomitted], lv denied 17 NY3d 859 [2011]; see People v Marte-Feliz, 192 AD3d at1398; People v Stanley, 189 AD3d1818, 1819 [2020]; People vBetances, 179 AD3d 1225, 1226 [2020], lv denied 35 NY3d 968 [2020]).
Defendant's CPL article 440 motion was grounded upon his claim of ineffective assistance ofcounsel. Specifically, defendant asserts that trial counsel failed to locate or call certain witnessesto testify upon defendant's behalf at trial, effectively cross-examine the People's witnesses and/orrender appropriate objections to their testimony, challenge certain jurors during voir dire and/ormove for a mistrial when County Court discharged a sworn juror, raise various objections to theSandoval hearing conducted in this matter, procure certain motor vehicle title andregistration documents from the appropriate authorities, pursue plea negotiations and properlyadvise defendant as to his sentencing exposure. However, defendant's own motion papersestablish that plea offers were extended to—and apparently rejected by—defendant.Additionally, with the exception of the allegedly erroneous sentencing advice, all of theforegoing issues are based upon matters that either were part of—or [*3]through the exercise of due diligence could have been made toappear upon—the trial record (see CPL 440.10 [3] [a]). As such matters couldhave been—and in some instances were—raised upon defendant's directappeal,[FN2] they are notproperly the subject of a CPL article 440 motion (see People v Spradlin, 192 AD3d at1273; People v Young, 115 AD3d1013, 1015 [2014], lv denied 24 NY3d 1124 [2015]).
With respect to trial counsel's alleged misrepresentations regarding defendant's potentialsentencing exposure following trial, the record contains only an unsworn letter purportedlyauthored by trial counsel—the validity of which the People dispute—suggestingthat the maximum sentence that could be imposed would be a prison term of 3
Lynch, J.P., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that theamended order is affirmed.
Footnote 1:County Court similarly notedthat defendant failed to provide the court with the cited exhibits—despite a request to doso.
Footnote 2:Although defendant continues tofault counsel for neglecting to procure certain witnesses and engaging in an ex parte colloquywith County Court, this Court considered and rejected those claims on the prior appeal, notingthat defendant's request for a continuance to locate the prospective witnesses was properly deniedand that his objection to the colloquy at issue was lacking in merit (148 AD3d at 1295-1296).
Footnote 3:Defendant does not argue that,but for counsel's allegedly erroneous sentencing advice, he would have accepted a plea offer (compare People v Vargas, 173 AD3d1466, 1468 [2019], lv denied 34 NY3d 955 [2019]), and, given defendant'scontinued assertion that his signature on certain title documents was forged, such claim would, inany event, be belied by the record.